July 23, 2009

Are judges umpires?

By Damien M. Schiff Senior Attorney

Author:  Damien M. Schiff

Professor Holly Doremus has this post from Legal Planet criticizing the analogy between umpires and judges.  Professor Doremus contends that the analogy is inapt for at least two reasons:  first, umpires do in fact have much discretion (compare one ump's strikezone to another and the point is proved); and second, the problems addressed by judges are far more complex than those decided by umpires.

The principal difficulty with Professor Doremus's analysis is that she seems to mistake complexity for indeterminacy.

The Sotomayor hearings have popularized the notion that judges should have "empathy"; the defenders of the "empathetic" judge contend that many legal questions do not have determinate answers, and so we should want judges who are emphathetic so that they can effect some form of rough justice in those allegedly indeterminate cases.  But these supposed instances of indeterminacy either do not exist, or, if they do exist, are the result of poorly crafted judicial rules.

In the first instance, the tools of textualism and originalism make plain what the judge's responsibilities are (even where determining the interpretive or historical facts upon which textualism and originalism operate may at times be quite challenging).  In the second instance, the indeterminacy that results from the application of "multi-factor balancing tests," for example, should not be used to support empathetic judicial decisionmaking but rather should provide strong reasons to change those tests so that they produce determinable results.

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